Exhibit 10.13
JOHN A. KITE
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (this
“Agreement”) is entered into as of August 16, 2004 by
and between Kite Realty Group Trust, a Maryland real estate
investment trust (the “Company”) and John A. Kite (the
“Executive”).
WHEREAS, the Company and Kite Realty
Group, L.P., a Delaware limited partnership, of which the Company
is the general partner (the “Operating Partnership”),
are engaging in various related transactions pursuant to which,
among other things, (i) the Operating Partnership will acquire
interests in various entities that own or lease real estate
properties in which certain persons affiliated with the Company
(including the Executive) have interests, (ii) the Company
will acquire indirect interests in certain service companies
currently owned by persons affiliated with the Company, including
the Executive, and (iii) the Company will effect an initial public
offering of its common shares and contribute the proceeds therefrom
for a like number of units of partnership interest in the Operating
Partnership (the “Kite IPO,” and together with the
other transactions described above, the “Kite IPO
Transactions”);
WHEREAS, concurrently with the
execution and delivery of this Agreement, the Company and the
Executive are entering into an Employment Agreement dated as of the
date hereof, pursuant to which, among other things, the Company has
agreed to employ the Executive, and the Executive has agreed to be
employed by the Company, in accordance with the terms thereof (the
“Employment Agreement”); and
WHEREAS, the Company and the
Executive agree that, as part of the Kite IPO Transactions, the
Executive will not engage in competition with the Company and will
refrain from taking certain other actions pursuant to the terms and
conditions hereof in an effort to protect the Company’s
legitimate business interests and goodwill and for other business
purposes.
NOW, THEREFORE, in consideration of
the foregoing and other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, the
parties hereto agree as follows:
1.
Noncompetition
. The Executive agrees with
the Company that for the longer of (i) the three-year period
beginning on the date of this Agreement or (ii) the period
during which the Executive is employed by the Company (or any
successor thereto) or its subsidiaries or Affiliates (as defined in
the Employment Agreement) (collectively, the “REIT”),
and for one year thereafter (the “Restricted Period”),
the Executive will not, (a) directly or indirectly, engage in
any business involving real property development, construction,
acquisition, ownership or operation, whether such business is
conducted by the Executive individually or as a principal, partner,
member, stockholder, director, trustee, officer, employee or
independent contractor of any Person (as defined below) or (b) own
any interests in real property which are competitive, directly or
indirectly, with any business carried on by the REIT; provided,
however , that this Section 1 shall not be deemed to prohibit
any of the following: (I) any of the real estate (and real
estate-related) activities listed on Schedule A hereto, the
Executive’s ownership, marketing, sale, transfer
or exchange of any of the
Executive’s interests in any of the properties or entities
listed on Schedule A hereto or any other permitted activities
listed on Schedule A hereto, (II) the direct or indirect ownership
by the Executive of up to five percent of the outstanding equity
interests of any public company, (III) any activities with respect
to residential real estate and (IV) a direct or indirect passive
ownership by the Executive of equity or similar ownership interests
of any corporation, partnership, limited liability company, joint
venture, association or other entity that is not a public company,
provided that the Executive is not involved in the management or
operation of such Person or its business (as a director, trustee,
officer, employee or otherwise) and such Person does not engage,
directly or indirectly, in (x) the development, construction,
acquisition, ownership or operation of neighborhood and community
shopping centers or (y) any other business or enterprise in
competition with any material business activities of the
REIT.
Notwithstanding the foregoing,
during the one-year “tail” period included in the
Restricted Period, the restrictions set forth in this Section 1
shall apply only within the following “Restricted
Areas”: (A) the states of Indiana, Florida and Texas; (B) the
area within a 10-mile radius of any property owned or leased by the
REIT, as of the date of the Executive’s termination of
employment; (C) each county in each state in which the REIT owns or
leases property as of the date of the Executive’s termination
of employment; and (D) in any state in which the REIT owns or
leases at least five properties as of the date of the
Executive’s termination of employment, the area within a
50-mile radius of any property owned or leased by the REIT, as of
the date of the Executive’s termination of employment.
For purposes of this Agreement, “Person” means any
individual, firm, corporation, partnership, company, limited
liability company, trust, joint venture, association or other
entity.
2.
Nonsolicitation
. The Executive agrees with the
Company that for the longer of (i) the three-year period beginning
on the date of this Agreement or (ii) the period during which the
Executive is employed by the REIT, and for two years thereafter,
such Executive will not (a) directly or indirectly solicit, induce
or encourage any employee or independent contractor to terminate
their employment with the REIT or to cease rendering services to
the REIT, and the Executive shall not initiate discussions with any
such Person for any such purpose or authorize or knowingly
co
